No Sealing of Documents in Lawsuit Alleging Prison Nurse's Falling Asleep Contributed to Inmate's Death

From Thursday's decision by Judge David Larimer in Carey v. Salvadore (W.D.N.Y.):

Plaintiffs William H. Carey and Barbara B. Carey, as administrators of the estate of their son Michael …, … allege that at the time of Michael's death from pulmonary congestion, [defendant Lisa] Salvador [{the correct spelling [of defendant's name]}] was working as a nurse at the medical unit where Michael was housed, and that she did nothing to help him and was unaware of his condition because she was asleep on duty….

The court ultimately concluded,

That some of the matter contained in these documents might cause some embarrassment or discomfiture to defendant is unremarkable; if that were all it took to justify keeping documents inaccessible to the public, sealing would be the norm, not the exception…. "[M]ost if not all litigation can be harassing and embarrassing to some extent" …. But that is not the law, as the Second Circuit has repeatedly emphasized. Sealing is the exception and defendant has the burden to justify that exception.

And it analyzed the matter thus:

"The common law right of public access to judicial documents…is based on the need for federal courts…to have a measure of accountability and for the public to have confidence in the administration of justice." "That right includes 'a general right to inspect and copy' …judicial documents." If the court determines that the documents at issue are judicial documents to which a presumption of access attaches, the court must determine the weight of the presumption of access, and then balance competing considerations against the weight of the presumption of access…. The First Amendment also provides the news media and public a qualified right to access certain judicial documents….

The first question for the Court is whether the documents at issue—in this case, exhibits offered and relied upon by plaintiffs in opposition to the defendant's motion for summary judgment—are "judicial documents." If they are, then the right of public access "gives rise to a rebuttable presumption of public availability."

To be considered a judicial document, "the item filed must be relevant to the performance of the judicial function and useful in the judicial process." … In general, "documents submitted to a court for its consideration in a summary judgment motion are—as a matter of law—judicial documents to which a strong presumption of access attaches, under both the the common law and the First Amendment." … "[D]ocuments used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons." Defendant has failed to show "compelling reasons" to seal.

At the same time, however, "it is well-settled that 'the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access.'" Rather, the document filed must be relevant and useful in the sense that "it would reasonably have the tendency to influence a district court's ruling on a motion."

In the case at bar, defendant states that she does not object to the public filing of "medical or investigatory records pertaining to Michael Carey's death," but she contends that "numerous documents" that plaintiffs seek to use "have no possible relevance to the motion for summary judgment." Defendant contends that these documents have nothing to do with the circumstances of Michael's death, and that plaintiff seeks to publicly file them only to "cast Defendant in a negative light…for the purpose of harassing and impugning the Defendant." In response, plaintiffs assert that the documents—which generally relate to various matters concerning defendant's employment history—are relevant to a number of issues in the case, including the timeline of events, defendant's credibility, and to show a pattern of behavior on her part.

In response to defendant's motion to seal, plaintiffs contend that the documents are relevant for several purposes, including to show that defendant was working in the infirmary on dates when plaintiff's witness, inmate Terry Nudd (who testified that he saw defendant sleeping while on duty), was housed there. Defendant replies that insofar as the documents are relevant to show the dates on which defendant was working, the publicly-filed copies should be redacted to show nothing but their dates.

If that were the only purpose for which plaintiffs sought to use this evidence, defendant's argument might have more force, but it is clear that this is only one of the purposes for which plaintiffs intend to use these documents. Plaintiffs state that they "plan to rely on these documents for impeachment, to counter the Defendant's misleading Statement of Material Fact, and to demonstrate, relative to some factual issues, pattern and intention by Nurse Salvadore."

The Court has reviewed the documents at issue, some of which relate to the DOCCS investigation that took place following Michael Carey's death. Although defendant was ultimately not disciplined in connection with Michael's death, the Court concludes that plaintiffs should be permitted to present those documents to fill in the details and complete the story of what occurred. In any event, the fact that defendant was not disciplined means that the prejudicial effect of this evidence is virtually nil.

The remainder of the documents concern events that are not directly related to Michael's death. These events, which both predate and postdate his death, generally relate to defendant's job performance, particularly in relation to other inmate patients in the infirmary, and they plainly are unfavorable to defendant. {The names of the patients have been blacked out in all the documents, with one exception, as explained below.} Plaintiffs state that they seek to use these documents "to prove opportunity, intent, plan, knowledge or absence of mistake in a civil rights action." Plaintiffs further state that the documents are relevant to defendant's credibility, particularly since (according to plaintiffs) defendant lied at her deposition when asked about some of the matters reflected in the documents.

Regardless of the extent to which, if any, the Court ultimately relies upon these documents in deciding defendant's motion for summary judgment, the Court concludes that they are "judicial documents to which a strong presumption of public access attaches, under both the common law and First Amendment." Whether the documents are persuasive to defeat the summary judgment motion is for another day and is not determinative as to the need for sealing…. [W]hen documents have been submitted in connection with a motion for summary judgment, it is error for the district court to decide the motion first, and then determine in hindsight whether particular documents were judicial documents based on whether or not the court relied on them….

Having determined that the documents at issue are judicial documents, the Court further finds that they should be publicly filed, and that defendant has not carried her burden to demonstrate that they should be sealed, under either the common law or First Amendment standard…. [A]n order sealing judicial documents must be supported by "specific, on the record findings…demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest"; "[b]road and general findings by the trial court" are insufficient….

Defendant has not come close to meeting that test. She contends that these documents are not factually related to Michael Carey's death and that plaintiff's only motive in seeking to file them is to embarrass her. As explained, however, the documents are not so far removed from the issues in this case that sealing is warranted.

Defendant has also failed to identify any specific harm sufficient to overcome the strong presumption of public access accorded to documents filed in connection with summary judgment motions. Plaintiffs are not seeking to introduce documents containing "deeply personal information" introduced for no other purpose than "calumny or score-settling," or to "gratify private spite" or "circulate libelous statements" about defendant….

For all these reasons, the Court denies defendants' motion to seal, except in one respect. One of the documents at issue is a transcript of defendant's testimony at a hearing conducted by DOCCS on April 24, 2015, in connection with an investigation into Michael Carey's death. That transcript contains several references to another inmate who was a patient in the infirmary. When filed, the transcript should be redacted to black out that inmate's name. Although it appears that the names of other nonparty inmate infirmary patients have been redacted from the remainder of the documents (aside from plaintiff's witness, inmate Nudd), plaintiff must ensure that no identifying information is contained in any medical records with respect to such inmates….

Elemer R. Keach III represents plaintiffs.